The Implications of Permitting and Development on … Implications of Permitting...Trust Obligation owed to Indian Tribes by the Federal Government •Federal government holds title

The Development Approval Process in Washington

The Implications of Permitting and Development on Indian

Reservations

Connie Sue Martin

Permitting and Developing Projects on Indian Reservations

• How are they different from other projects?

• What are the benefits of projects on Reservations?

• What should you be aware of in contracting with Indian Tribes or Tribal entities?

• How can you protect your clients in contracting with Indian Tribes or Tribal entities?

Permitting and Developing Projects on Indian Reservations

How are projects on Indian Reservations different?

• Tribal Sovereignty• Regulatory Authority over Reservation

Land• Application of Labor and Employment

Laws

• Department of Interior Review and Approval of Contracts

• Dispute Resolution• Enforcement and Collection of Judgments

How are projects on Indian Reservations different?

Tribal Sovereignty

• Tribes occupy unique and distinctive political and legal status – Separate, sovereign nations– Inherent authority to regulate members and

territory

• Tribes occupy unique and distinctive political and legal status – Congress retains unlimited and absolute power

over Tribes– Exist as dependent wards subject to sovereignty

guardianship of U.S. – Limits on Tribal regulatory authority

Tribal Sovereignty

Indian Reorganization Act• Indian Reorganization Act of 1934, 25

U.S.C. §§ 461 - 479• IRA sought to increase Tribal self-

government, decrease federal control– Encouraged written constitutions– Returned surplus lands to Tribes– Granted Tribes power to manage internal affairs

• § 16 (25 U.S.C. § 476) addresses the organization of Tribal governments

• § 17 (25 U.S.C. § 477) provides for the organization of Tribal corporations – Empowers Tribe to purchase, take by gift,

bequest or otherwise, own, hold, manage, operate, and dispose of real and personal property (except trust lands)

– Grants Tribe all powers incident to the conduct of corporate business

Indian Reorganization Act

• § 17 also provides for the organization of Tribal economic enterprises– those businesses created by the Tribal government

for the direct benefit of the Tribe or its members; or

– those businesses that generate profits that provide a revenue stream that feed directly into Tribal funds

Indian Reorganization Act

Trust Obligation owed to Indian Tribes by the Federal Government

• Federal government holds title to significant portions of Reservation lands, in trust for the benefit of the Tribe– Limits the Tribe’s authority to sell, mortgage or

lease Trust lands for a period exceeding 25 years

– Creates a fiduciary obligation owed by the federal government to the Tribe to protect or enhance Tribal assets (economic, natural, human or cultural)

Regulatory Authority over Reservation Lands

• Tribes have criminal and civil jurisdiction over Tribal members on the Reservation

• Tribes have civil jurisdiction over Trust lands and lands held in fee by Tribal members

• Tribes may have civil jurisdiction over non-members on the Reservation and fee land owned by non-members (contractual relationship, or matters affecting Tribal health, welfare, and sovereignty) – the Montana test

Regulatory Authority over Reservation Lands

Regulatory Authority

• Zoning– States cannot regulate the use of Trust property

inconsistent with federal treaty, statute or agreement

– Tribal trust land not subject to state or local zoning regulations

– Many Tribes have adopted Tribal zoning ordinances, comprehensive systems of land use regulations and building and development permitting

Federally Chartered Municipality

• Tulalip Tribe created the Consolidated Borough of Quil Ceda Village, a “municipal body politic and corporate,” a municipality separate and distinct from the Tulalip Tribe


• Dept. of Interior approved the Village’s status as a political subdivision of the Tribe under the Indian Tribal Government Tax Status Act of 1982 that (along with a formal IRS opinion) enabled the Village to sell municipal bonds to support infrastructure development


• First federally-chartered municipality since Congress chartered Washington, D.C. in 1871

• Functions just like any other municipality


• Governed by an appointed Village Council that enacts ordinances and legislation, develops and approves the Village budget, and sets policies

• Ultimately, Village Council will be elected by eligible voters of Quil Ceda Village (under terms of charter, those are members of the Tulalip Tribe)


• Being a municipality protects Tribe from annexation of land by county or local government where majority of employees or users of the property are not Tribal members


• Separate status allows Village to pass measures to encourage outside investment in the shopping center without binding the entire Reservation

• Preserves the rural character of the rest of the reservation while encouraging development of the shopping center area

Environmental Protection

• Sources of Tribal authority:– Inherent authority to exercise sovereign powers

to protect health and welfare of Tribal members– Treaties, federal statutes and executive orders

reserving rights of Tribes in lands, waters and natural resources

– Delegation of federal authority under environmental statutes such as CWA, CAA, CERCLA

Environmental Protection

• Tribes afforded “Treatment as State” authority may implement and enforce federal environmental statutes

• Tribes may adopt and enforce Tribal environmental statutes

• Individuals and entities doing business on Reservation must be aware of and comply with applicable Tribal codes, ordinances and regulations

Taxation

• A state cannot interfere with the operations of the federal government or directly tax the United States without the specific consent of Congress

• Immunity of federal government to state taxation extends to Indians and Tribes in Indian Country

Taxation

• “Indian Preemption Doctrine” requires “particularized examination” on case-by-case basis; to avoid preemption, state must establish compelling interest to assert tax authority

Taxation

• States may not tax or encumber real or personal property belonging to Tribes or individual Indians within Indian Country

• States may not impose vehicle excise tax or registration fees upon Indians who reside and maintain their vehicles in Indian Country

Taxation

• States may not tax members’ Reservation income

• Non-Indians doing business with Tribes on Reservation may be immune from taxation as well

Taxation

• Immunity applies when tax imposed on non-Indians if indirect impact of tax on the Tribe frustrates federal policies of Tribal self-determination– Sales of personal property exempt from B&O

tax where property delivered to buyer in Indian Country; property located there at time of sale; seller has place of business in Indian Country; and sale was solicited while seller was in Indian Country

Taxation

– Businesses performing retail services (e.g., construction, auto repairs) for Tribes or Tribal members in Indian Country exempt from B&O tax on income from such services and from public utility taxes

– Businesses performing professional or personal services (e.g., engineering, legal, tax preparation) for Tribes or Tribal members in Indian Country exempt from B&O tax on charges for such services

Taxation

• Non-Indians who live or do business on Reservation or in Indian Country not exempt from state taxation on Reservation Income and property

Taxation

• States can levy taxes:– on sales and services to persons other than

Indians in Indian Country– on work performed for a Tribe or member off

the Reservation– on income earned by members living or Tribal

businesses operating off-Reservation

Tribal Taxes

• Federal government has consistently recognized that Tribes possess power to levy taxes over members and non-members on Reservation lands

• Except where Congress has provided otherwise, Tribes may exercise inherent power of taxation as sovereign entities over members and non-members to the extent non-members accept privileges of trade, residence, etc. to which taxes attach

Labor and Employment Laws

• Courts generally reluctant to apply federal statutes that regulate terms and conditions of employment unless statutes expressly address and include Tribes

• Two statutes expressly exclude Tribes from coverage– Title VII of the Civil Rights Act of 1964– Title I of the Americans with Disabilities Act


• State Workers’ Compensation Laws– 40 U.S.C. § 3172 authorizes application of

workers’ comp laws to federal lands and premises, including Tribal trust and Reservation lands


• State Workers’ Compensation Laws– 40 U.S.C. § 3172 does not abrogate Tribal

sovereignty; state workers comp laws do not apply to Tribal employers’ on-Reservation businesses unless employer consents

– Non-Indian employers in business with Tribes may be exempt from state workers’ comp laws


• Occupational Safety and Health Act– Historically, courts reluctant to apply statutes to

Tribes that regulate terms and conditions of employment, including workplace health and safety, unless expressly included in statute

– OSHA does not preempt Tribal safety regulations as it does state laws

– Tribes may adopt so long as application does not conflict with the application of OSHA


• Fair Labor Standards Act– Establishes minimum wages and requires

employers to pay time and a half for overtime work for covered employees

– Courts have held Tribal businesses generally notexempt from FLSA, unless employees carry out Tribal governmental functions (e.g., Tribal law enforcement personnel)

– “FairPay” Rules effective 8/23/04 drastically altered traditional tests of exemption, impact on Tribes not yet known


• National Labor Relations Act– Guarantees workers the right to join unions and

protects workers from unfair labor practices– Historically, did not apply to Tribes, could adopt

and enforce right-to-work ordinances precluding union membership as condition of employment


• National Labor Relations Act– In San Miguel Indian Bingo & Casino case

(5/28/04) NLRB reversed its prior precedent and held that NLRA applied to Tribally-owned commercial enterprises


• San Miguel adopted new test for determining applicability to employment practices of Tribes:– Tribes are not exempt from the NLRA (location

of enterprise not relevant)– NLRA is a statute of general applicability

(commercial activities of Tribes not vital to self-governance or essential attribute of sovereignty)

– No general rule, must be determined on case-by-case basis (balancing test)


• Under “Indian preference exemption” of Title VII of Civil Rights Act of 1964, employers must select qualified Indian applicants for job vacancies to the exclusion of any qualified non-Indian applicants


• Preference for members of federally-recognized Inidan Tribes has been upheld by U.S. Supreme Court as a political, rather than a racial distinction

• Contracts with Tribes may include Indian preference language

DOI Review and Approval of Contracts

• From 1871 - 2000 all contracts involving payments by Tribes for services related to their lands required Secretarial approval; without approval, contracts null and void

• New statute and final rules adopted in 2000 limit approvals required, identify types of contracts and agreements exempt from approval requirement


• Exemptions:– Leases, rights-of-way, other documents

conveying a present interest in Tribal land– Contracts or leases conveying temporary use

rights assigned by Tribes to Tribal members


• Exemptions:– Contracts and agreements that do not convey

exclusive or nearly exclusive proprietary control over Tribal lands for > 7 years (e.g., construction contracts, contracts for services, bonds, loans, and security interests in personal property)

Sample Contract Provisions

• See Appendix, Section IV of written materials

Dispute Resolution

• Tribal Sovereign Immunity– Can you sue?

• Forum– If you can sue, which tribunal?

• Enforcement and Collection of Judgments– Once you get a judgment, how do you enforce

it?

Dispute Resolution

• Sovereign Immunity– As sovereigns, Tribes and Tribal officials acting

in scope of authority enjoy immunity from non-consensual suit in same manner as state and federal governments

– Tribal sovereign immunity extends to Tribe’s commercial and proprietary activities, making it broader than with other governments

Dispute Resolution

• Sovereign Immunity– Congress may waive Tribal immunity by statute– Tribe may waive sovereign immunity through

ordinance or contract– To be effective, waiver must be an official act

that clearly and unequivocally expresses consent to suit

Dispute Resolution

• Forum– State courts have no jurisdiction over claims

brought by non-Indians against Indians for claims arising in Indian Country

– Tribal courts have broad authority to hear civil disputes

Dispute Resolution

• Forum– Federal courts require the exhaustion of Tribal

remedies before hearing merits of a case brought in Tribal forum, conmity requires district court to defer to Tribal court’s determination of jurisdiction

Dispute Resolution

• Tribes or Tribal members may choose to submit to jurisdiction of particular forum– Tribal plaintiff may sue non-Indian defendant

in state or federal court– Some Tribal codes require suits against non-

Indian defendants to be brought in state court– Tribes or Tribal members may agree in

contract to a particular forum (e.g., state court, AAA arbitration)

Enforcement and Collection of Judgments

• Judgments made by Tribal courts subject to Tribal laws regarding enforcement and collection

• Enforcement of state-court judgements on-Reservation subject to Tribal processes, state processes off-Reservation (assuming jurisdiction)

Enforcement and Collection of Judgments

• State courts vary in their recognition of Tribal court judgments for execution off-Reservation

• Federal law prevents enforcement of state or Tribal court judgments against trust property

Protecting the Development Professional

• Determine applicability of state and federal laws to project– Zoning– Environmental protection– Taxes– Labor and Employment laws– Requirements for Indian preferences


• Determine exemption from DOI review and approval

• Determine ability to secure Tribal assets for payment


• Provide contractual protections for non-Indian business– Clear and unequivocal waiver of sovereign

immunity– Choice of forum (state court, arbitration)

• Determine availability of assets for collection of judgments

Summary

• How permitting and development projects on Indian Reservations are different from other projects

• Benefits of doing business with Tribes on Reservations

Summary

• Issues to be aware of in contracting with Indian Tribes or Tribal entities for on-Reservation projects

• How to protect your clients through contractual waivers of sovereign immunity, choice of forum clauses in contracts with Indian Tribes or Tribal entities for on-Reservation projects

Thank you for attending!For additional information on today’s topic, please contact:

Connie Sue Martin(206) 521-6432

[email protected]

Documents

The Implications of Permitting and Development on … Implications of Permitting...Trust Obligation owed to Indian Tribes by the Federal Government •Federal government holds title